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With a 60-year heritage, Gallivan, White, & Boyd, P.A. is one of the Southeast’s leading litigation and business law firms. GWB's products liability team has extensive experience in defending a wide variety of products liability claims, including mass tort and catastrophic loss claims, as well as conducting accident investigations and providing strategic advocacy services to our clients. Gallivan, White & Boyd, P.A. has offices in Greenville, S.C., Charleston, S.C., Columbia, S.C., and Charlotte, N.C.

In 2010, we blogged about the then-recent decision in Courtney v. Nissan Motor Co., Ltd., in which a Florence County, South Carolina jury awarded $2.375 million to a young girl burned when the Nissan SUV in which she was riding wrecked; the minor’s seat happened to be situated on top of the gas tank. Our commentary included the following analysis:

The plaintiff set forth causes of action for strict liability and breach of warranty, arguing that Nissan failed to ensure the crashworthiness of the vehicle because a small metal bracket was likely to puncture the fuel tank in the event of a side collision. The plaintiff reportedly utilized experts from Texas, Utah, California and Japan, among others, to testify to such issues as the alleged foreseeability of the bracket’s puncturing of the fuel tank. Nissan, in turn, argued that the tank rupture was due to the severe and unique circumstances of the collision, which had placed extreme, concentrated energy at the location of the bracket.

The jury apparently was able to overlook two important challenges to the plaintiff’s case: (1) the SUV had complied with all federal standards; and (2) it was the driver of the Nissan Xterra who admittedly was at fault in causing the accident. The plaintiff’s position, according to her attorney, was that if the vehicle had been built according to European standards rather than U.S. standards, whereby the bracket would have been placed no closer than 100 millimeters from the fuel tank, then the fire would not have occurred.

Not surprisingly perhaps, Nissan appealed. Recently, the South Carolina Court of Appeals took up the case and issued this opinion affirming the jury’s award. One of the issues on appeal included whether the circuit court erred in denying Nissan’s post-trial motion for JNOV based on the plaintiff’s failure to provide a feasible alternative design as required by Branham v. Ford Motor Company, 390 S.C. 203, 701 S.E.2d 5 (2010). (See Abnormal Use’s coverage of that case here).

Importantly, the Court of Appeals was tasked in Courtney to determine if Branham applied retroactively, or prospectively only, since Branham came out after the jury’s award in Courtney. The Court held that Branham did, in fact, apply retroactively, based on principles long-held in South Carolina jurisprudence:

Turning to the instant case, we recognize that in South Carolina, “[t]he general rule regarding retroactive application of judicial decisions is that decisions creating new substantive rights have prospective effect only, whereas decisions creating new remedies to vindicate existing rights are applied retrospectively.”

The Court of Appeals decided that the Courtney case fell into the latter category, since the risk-utility test had been employed in the products liability context for a long time, if not exclusively. Thus, having decided that Branham applied in this case, the Court then took up the question whether the plaintiff’s alleged failure to provide an alternative design entitled Nissan to JNOV. The jury determined that the plaintiff failed to prove a feasible alternative design in a post-verdict interrogatory that, according to the Court of Appeals, should never have been put before the jury in the first place, since “[o]ur supreme court has previously held that ‘[i]t is improper in a law case to submit factual issues to a jury in the form of non-binding ‘advisory interrogatories.'” (internal citations and quotations omitted). Since the interrogatory was not dispositive of liability, it didn’t really matter what the jury found, one way or the other, in the Court’s estimation. We see this as the Court saying, in essence, “no harm, no foul.” Finding that the jury’s answer to the interrogatory was dispositive of, well, nothing, the Court affirmed the denial of Nissan’s motion for JNOV.

Recently, inQuinton v. Toyota Motor Corp. et al., No. 1:10-cv-02187 (D.S.C. April 17, 2013), the U.S. District Court for the District of South Carolina opined on some motions for summary judgment in another Toyota product liability suit. The matter arose out of a single vehicle accident that occurred in 2009 in Aiken, South Carolina. April Quinton, driving a rented 2009 Toyota Camry, lost control of the vehicle when entering a left-hand turn. The Camry exited the road, rolled over several times, and came to a rest. Quinton sustained a head injury in the accident and died nine days later. Quinton’s estate filed a wrongful death action against Toyota, alleging that Quinton’s death was caused by defects in the vehicle’s seat belt restraint system, roof structure, and supplemental restraint system.

On Toyota’s motion for summary judgment, the Plaintiff did not contest the lack of evidence regarding the seat belt restraint system and roof structure and, thus, the motion was granted. The Court held, however, that there was at least some issue of fact concerning the defective design of the supplemental restraint system. The vehicle’s supplemental restraint system consisted of frontal airbags, side torso airbags and curtain shield airbags mounted along the roof. However, the 2009 Camry lacked rollover-activated curtain shield airbags (“RCSA”). Toyota argued that it was entitled to summary judgment because the Plaintiff’s expert did not opine that the failure to include the RCSA made the system defective or unreasonably dangerous. Nonetheless, the Court held that the Plaintiff had met her burden to demonstrate that the lack of a RCSA was a design flaw and that the RCSA was a feasible alternative design. Toyota’ Accident Data Analysis Report revealed that RCSA’s could lead to a 50 percent reduction in fatalities. Toyota’s expert also indicated the installation of RCSAs was possible from a technological and economic standpoint. Given this evidence, the Court found there to be a genuine issue of material fact and denied Toyota’s motion.

Juries are fickle. There is just no getting around it. Ask any seasoned trial attorney, and he or she can probably tell you about the jury that “got it all wrong” – not simply, perhaps, because they ruled against the lawyer’s client, but because their award or decision defied all logic. That was the issue that confronted Florida’s third district court of appeals in the case Tricam Ind ustries, Inc., et al v. Coba, 100 So.3d 105 (Fla. Dist. Ct. App. 2012), reh’g denied (Nov. 19, 2012) [PDF]. The case centered around a ladder manufactured by Tricam Industries and sold by Home Depot. The decedent, a civil engineer, died 10 days after falling from the ladder from injuries sustained in that fall. The plaintiff alleged strict liability and negligence against both defendants in several particulars, including manufacturing and design defects. At trial, the evidence focused only on the design of the ladder, however. Specifically, the plaintiff’s expert opined that the design of the ladder was such that it could give the impression of being in the locked position when, in fact, it was not. The defendant’s expert, predictably, opined that the ladder could not “false lock.”

Prior to closing arguments, the plaintiffs withdrew the manufacturing defect claims. In addition, the court limited the jury instructions to design defects in both the strict liability and negligence theories. The jury, however, returned a verdict finding that there were no design defects, but that the negligence of the defendants was a legal cause of the decedent’s death, and awarded more than $1.5 million to the plaintiff. After trial, the defendants argued that the verdict should be set aside because the finding of no design defects was fundamentally inconsistent with its finding of negligence. The plaintiff also moved for a new trial based on some issues with one of the jurors not pertinent to a products liability discussion. The trial court denied both motions.

The appellate court considering the defendants’ motion reversed the trial court’s decision. First, however, it noted that a reversal on such grounds is no small task, given the fact that the defendants had failed to object to the verdict at the time it was rendered:

The plaintiff concedes that the verdict in this case was inconsistent, but argues that the defendants waived their objection to the inconsistency by failing to object before the jury was discharged. Normally, we would agree. The Fourth and Fifth District Courts of Appeal, however, have carved out an exception to this general rule where the inconsistency “is of a fundamental nature.” Because we agree with the well-reasoned opinions of our sister courts to the north, and because there is no case in this district which has held to the contrary, we adopt the “fundamental nature” exception as applied in this context.

100 So. 3d at 108-09 (internal citations omitted). Citing prior opinions from those districts, the Third District, which heard this case, adopted that test and reversed the verdict.

Every tort has elements established by either common or statutory law which must be proven in order for the plaintiff to prevail. For example, negligent conduct without resulting damages does not constitute an actionable negligence claim in the eyes of the law. Product liability claims are no different. Plaintiffs must show that they were injured by a product but also that the injuries were caused by a product in an unreasonably dangerous, defective condition. If one element is not proven, then the plaintiff cannot prevail. In cases involving complex, scientific issues, expert testimony is often necessary to prove the design defect. Recently, the South Carolina Supreme Court addressed the difficult burden plaintiffs face in proving these necessary legal elements.

In Graves v. CAS Medical Systems, Inc., Op. No. 27168 (S.C. Dec. 12, 2012), the plaintiffs filed suit against CAS Medical Systems following the death of their 6-month old daughter. The girl was one of three triplet daughters ordered to be connected to an in-home monitor manufactured by CAS to track breathing and heart patterns. By design, the monitor would sound a loud alarm if the girl stopped breathing or her heart rate slowed. Despite being monitored by the machine, the girl died one night of Sudden Infant Death Syndrome (SIDS). The plaintiffs allege that the monitor’s alarm never sounded.

Subsequently, the plaintiffs sued CAS, alleging that the monitor’s software design caused the monitor to fail. As an over-simplified summary of their theory, they alleged that the software was “jumbled,” causing the alarm signal to occassionally get lost on the way to its destination. There was no dispute that the harware functioned properly. To support their claim, the plaintiffs retained three software experts to testify that a defect caused an alarm failure. None of the experts did much actual testing of the hardware, relying instead on so-called differential diagnosis theory. Because the plaintiffs were not woken by the alarm, it must not have sounded, at least according to the experts. Because the hardware was not defective, then the software was to blame. Sounds like good logic.

At trial, CAS moved to have the experts’ testimony excluded on the grounds that it did not meet the reliability factors for scientific testimony. In turn, CAS moved for summary judgment because without the expert testimony, the plaintiffs could not prove a design defect. The Court agreed that the experts’ testimony was not reliable and granted CAS’ motion for summary judgment.

On appeal, the Supreme Court agreed with the trial court in finding that the experts’ testimony was unreliable. The Court indicated that when relying on differential diagnosis, the expert must provide a reasonable, objective explanation for the rejection of alternative causes. Apparently, the “because they said so” explanation was insufficient. As the Court noted, there was substantial evidence that complaint error was a real possibility. The monitor’s internal record keeping system noted that the alarm sounded. The girl’s pediatrician opined that the plaintiffs slept through the alarm due to the extreme exhaustion of raising triplet infants. Moreover, the monitor successfully recorded the girl’s declining heart rate and breathing cessation. None of this evidence appears to have been accounted for by the experts.

Without the expert testimony, the Court held that the plaintiffs’ could not prove the injury was caused by a defective condition – an essential element of a product liability claim. The plaintiffs had to offer some evidence beyond a potential failure to show that it was unreasonably dangerous. Because the allegations involved complex software issues, expert testimony was necessary. Without it, the plaintiffs could not support their claim.

We here at Abnormal Use know not whether the monitor’s software was in fact defective, but neither do those experts. There simply was not enough evidence. While some extenuated logic could deduce that the software was defective because the alarm was not heard, it doesn’t account for alternative explanations. Further, simply because something was not heard does not mean it didn’t sound. Expert testimony must still account for some objective criteria – or plaintiffs run the risk of overlooking essential elements of their claims.

On October 1, 2012, the Southern District of Florida issued its opinion in the case Hernandez v. Altec Environmental Products, LLC, No. 10-80532-CIV, 2012 WL 4511341 (S.D. Fla. Oct. 1, 2012). The case involved Guadalupe Hernandez, an employee of Asplundh Tee Expert Co., who suffered a severed hand while operating a wood chipper manufactured by Altec Environmental Products, LLC (“AEP”). Mr. Hernandez and his wife brought suit against AEP and another Altec entity, and both defendants moved for summary judgment in the case.

The wood chipper at issue in this case was a CFD 1217 model. As designed and manufactured, the wood chipper had a guard that covered the bottom of the housing for the in-feed roller, which was referred to by the Court as the safety cover.

On the day of the accident, however, the safety cover was not on the wood chipper. Why? Because it had been removed by the Plaintiff’s employer. Mr. Hernandez was aware of that fact. Apparently, the safety cover was removed because the machine had a tendency to jam with debris, which needed to be constantly cleared from the in-feed rollers to keep the machine working.

Mr. Hernandez had been trained by his employer to clear debris from the machine with his hand, which could only be done with the safety cover off the machine. Mr. Hernandez was not paying attention as he cleared debris with his hand on the day of the accident, and that’s when he got his hand severed.

At the summary judgment phase, the Plaintiffs argued the machine was defectively designed, causing it to jam repeatedly. Plaintiffs contended that this purported defect actually encouraged operators to remove the guard and leave it off, which they argued was a foreseeable event. This was a creative argument, but the Court wasn’t buying it:

At the hearing on the instant motion, the Court pressed Plaintiffs’ counsel to cite any cases that held a manufacturer strictly liable for failing to modify a design of a product that when used as directed was not harmful or dangerous, but when foreseeably misused or put to an unintended use, could be found to be unreasonably dangerous.

The plaintiffs cited Norton, an Eleventh Circuit case in which the key piece of evidence against the manufacturer on a design defect theory was the failure to install a dead man’s switch on a mower. But the Court in this case quickly dismissed that argument:

There is, however, a critical factual difference between this case and Norton. In Norton, the mower was found to be defective or unreasonably dangerous as designed. In this case, it is undisputed that the wood chipper as designed was not dangerous.

The plaintiffs disagreed, and tried to argue that the wood chipper “didn’t work the way it was supposed to” and encouraged foreseeable misuse (i.e. taking the safety cover off the machine). The Court declined to extend the doctrine of strict liability that far:

Plaintiffs have no authority for the proposition that a manufacturer may be strictly liable for a foreseeable misuse of a product or for a product that is not unreasonably dangerous as designed, but which merely functions in an allegedly unsatisfactory or inefficient manner.

When I started reading this decision, I thought it would be a run-of-the-mill products case with no potential for implications beyond its own facts. But this is a sneaky case. Imagine if the plaintiffs’ argument had worked. Strict liability would have expanded significantly. Manufacturers would be liable not only for protecting people from their own lack of common sense (i.e. placing your hands in the vicinity of moving machinery), but also when their products were modified from their original design to be more dangerous.

Evidence of a plaintiff’s use of drug and alcohol is often admissible in a personal injury action. While prejudicial, the usage of such substances is highly relevant when it contributed to causing the injury of which the plaintiff complains. Simple enough. But what happens when there is evidence of drug use in product liability litigation (by a plaintiff, not a manufacturer)? Certainly, a product remains defectively designed or manufactured regardless of the user’s propensity to indulge in body altering substances, right? Maybe not, says the Western District of Louisiana.

In Graham v. Hamilton, No. 3:11-609, 2012 WL 1898667 (W.D. La. May 23, 2012), the plaintiff’s alleged that the door latch design in a Chevrolet Camaro was unreasonably dangerous because it allowed an unlocked door to open during a motor vehicle accident. As plaintiffs, the widower of the driver and the guardian of a child passenger, argued that had the door latch not been defectively designed, the driver would not have been ejected, would have survived the accident, and rescued her child before he died when the vehicle caught fire.

But there is one problem – the driver was under the influence of marijuana at the time of the accident.

The plaintiffs moved in limine to exclude the evidence of drug use as unfairly prejudicial. They argued that the mere mention of marijuana would

[C]reate an over-arching presence in jury deliberations which would cause a miscarriage of justice related to the issues of whether the Camaro was defective . . . .

The Court agreed that the evidence was highly prejudicial; however, the potential prejudice to the plaintiffs did not outweigh the probative value of that evidence. According to the Court, the driver’s use of marijuana made it more likely that she caused her injuries and less likely that she could quickly remove her child from the vehicle. As such, this evidence should be left in the jury’s hands.

We here at Abnormal Use don’t intend to engage in a socio-political debate regarding the use of marijuana. But under the facts of this case, we must applaud the Court’s decision. While we have no idea whether the design of the door locks was defective, a plaintiff’s own comparative fault must be considered. The question is not whether product can be defectively designed when the user is high. Rather, the question is whether a plaintiff should be able to recover when, despite the alleged defect, he had a hand in causing his injuries?

I’ve handled products cases involving a wide spectrum of products, from residential gas grills to tractor-trailer components. Frankly, I enjoy the variety and the opportunity to learn about new industries and products and meet the people who are associated with them. I understand, however, that many lawyers – especially plaintiffs’ lawyers – often focus on one product. It gives them the ability to develop and expertise on a certain subject and, as a result, handle more cases because of their familiarity.

I spoke with a plaintiff’s attorney recently who files a lot of litigation on behalf of plaintiffs allegedly injured by portable gas cans. Although we didn’t speak at length about the issues involved with the particular product, he mentioned something about an inexpensive component part that prevents fires but was not readily incorporated into the cans themselves by the manufacturers. A simple Google search on “gas can litigation” revealed that many plaintiffs’ attorneys actually list this type of litigation on their websites as a distinct area of would-be expertise, proving what the lawyer had impressed upon me: that gas can litigation is big business these days.

I ran across the recent case of Murray v. Traxxas Corp., — So. 3d —, 2D10-3789, 2012 WL 279657 (Fla. Dist. Ct. App. Feb. 1, 2012), which appears to illustrate my colleague’s point. The facts of the case are relatively simple. Two boys were trying to build a fire using leaves, sticks, and a cigarette lighter at their grandparents’ house so they could roast marshmallows. They had trouble lighting it, so they searched for an alternative fuel source. What they found in the garage was a portable gas tank containing gasoline. As one of the boys tipped the open gas can toward the pile of leaves and the lighter, before any fuel spilled out of the can, an explosion occurred. One of the boys sustained severe burns as a result of the explosion.

Witnesses who looked at the gas can after the accident, including a fire inspector, described the can as looking “bowed out.” Photographs were taken by the inspector, but the can was disposed of by the grandparents, who believed it still posed some danger.

Inevitably, a battle of the experts ensued; it focused on whether a “flashback” explosion had occurred. The plaintiffs’ expert argued the can was defectively designed because it did not have a so-called “flame arrestor,” an inexpensive component that would have prevented such an occurrence. According to the expert, “flame arrestors are readily available on the market and have been incorporated by other manufacturers into similar fuel cans,” and by not incorporating one into this particular can, the manufacturer defendants were negligent.

The defendants moved for summary judgment, which the trial court granted on the grounds that the can itself had not been maintained for inspection and testing. As the appeals court remarked, the disposal of the gas can gave rise to two particular problems for the trial court. First, there was no way to tell whether the original fuel was in the can, or whether it had been replaced by a different fuel. Second, the trial court held, the plaintiffs could not meet their burden of proof to show design defect because the can itself could not be tested. The court of appeals didn’t see it the same way. It noted that the plaintiffs had proven an unbroken chain of custody for the can and its contents. Furthermore, the court observed, it was unlikely that the original can could have been tested at all after the damage it sustained in the explosion and, in any case, similar cans could be tested because the manufacturer had been positively identified. The appeals court reversed the summary judgment and remanded the case for further proceedings.

We don’t yet know the outcome of this case, but from a plaintiff’s attorney’s position, this litigation is pretty savvy. Here is a product that, allegedly, can be made safer with a very inexpensive device. That, combined with the potential for serious burn injuries and property damage from cans without the device makes it a pretty attractive piece of litigation. Defense lawyers should be aware of these arguments when defending these cases and prepare for them accordingly.

Every so often, I read a news story about a lawsuit that makes me think I’ve inadvertently stumbled onto the satirical publication The Onion. This is one of those stories.

According to this report by CBC News out of British Columbia, a woman named Saliha Alnoor is suing the Colgate-Palmolive Company for injuries she sustained when her toothbrush allegedly broke in two places in her mouth, slicing her gums and causing her to lose consciousness.

Alnoor apparently hired an engineer, who has done extensive testing on the toothbrush and determined that it contains a design defect that caused the brush to break. Despite this damning would-be testimony, however, Alnoor is now representing herself against the company, in what her family describes as a “David and Goliath” battle.

After initially complaining to Colgate, the company sent her a $20 coupon. Later, when she became particularly serious about her claims, the company offered to settle her case for $500. Can’t you just smell the fear? It smells oddly like mint.

This is one case we’re going to have to watch. I wonder what Wacky Warning Label might come out of this case.

To the naked eye, these new Old Navy shirts look perfectly normal. No misspelled words. No mismatched collegiate logos. No misplaced slogans. On closer inspection, you will notice a slight problem – those dates at the bottom were apparently pulled out of a hat. Those dates are meant to represent the founding year of each university. The years 1820, 1878, and 1881 were probably fertile years to found universities. The problem is the Universities of Iowa, Colorado, and Arizona were founded in 1847, 1876, and 1885, respectively.

We understand errors can happen, but this is inexcusable. Before learning of this defect, like Old Navy, I had no idea when these universities were founded. A simple Google search took me 1 minute and 43 seconds to verify the founding dates of each school. With less than two minutes of work, Old Navy could have saved itself from this embarrassment.

This mistake really should not surprise any of us. After all, Old Navy had to recall thousands of collegiate tees back in August after misspelling “Let’s Go!!” Proofreading is obviously not a strongsuit. If Old Navy can mess up such a simple phrase, we shouldn’t expect them to correctly handle “complex” dates and numbers.

To our knowledge, no lawsuits have been filed over these defective products. Certainly, some University of Iowa fan has been damaged by the discovery that his university is 27 years younger than Old Navy’s proclamation. Of course, there must be some level of comparative fault for having to learn a piece of your university’s history from a $10 t-shirt.

The Yamaha Motor Corporation has caught a lot of flack recently over the lack of doors on its two-seater Rhino all-terrain vehicle. After it made some safety modifications to the Rhino in 2007, Yamaha was hit with a number of lawsuits – 175 in California alone. The national media caught wind of the lawsuits and came down pretty harsh. In response, Yamaha created its own website, TruthAboutRhino.com, and a Rally Around Rhino widget to garner support for the ATV. We don’t the know effectiveness of Yamaha’s use of the Interwebs, but something must have worked. Yamaha prevailed in all but one of the lawsuits. As to the one that got away? Well, that one was recently reversed by an appellate court.

Earlier this month, in Yamaha Motor Corp. U.S.A. v. McTaggart, No. A11A1022 (Ga. Ct. App. Nov. 15, 2011), the Georgia Court of Appeals reversed and remanded the case to the trial court with direction to enter judgment granting Yamaha’s motion for a directed verdict. In 2008, the plaintiff filed suit against Yamaha after he flipped his Rhino and suffered a severe laceration to his leg. The complaint alleged that his injuries were caused by a latent stability defect and the absence of doors. (The stability defect claims were abandoned four weeks before trial). Following a trial, the jury found that the Rhino’s defective design proximately caused the plaintiff’s injuries and returned a verdict in his favor for $317,002.

On appeal, Yamaha argued that the undisputed evidence at trial demanded a finding that the plaintiff assumed the risk of his injuries. At trial, the plaintiff testified that the Rhino was useful to him “because it had no door.” When he purchased the ATV, he declined the dealership’s offer to install an after-market door because he preferred the open access. Further, the plaintiff admitted that he had seen and understood the significance of keeping his legs inside the Rhino during a rollover. When the salesman reviewed the warning stickers on the Rhino, the plaintiff admittedly laughed and said, “Well, man, common sense would tell you not to do that, right?” Looking at the evidence as a whole, the Court found that the plaintiff had significant experience operating the Rhino and was clearly aware of the potential danger of injury to his limbs.

Yamaha may champion this decision on its Rhino website, but it should be noted that this decision tells us little, if anything, about the alleged defective design of the Rhino. That issue was not on appeal. We can see how some may view doors as a necessary component of a vehicle. But let’s get real. We aren’t talking about driving a DeLorean down the freeway. We are talking about a Rhino – an all-terrain vehicle. Ever heard of Jeep? No doors necessary.

Regardless of the potential design defect, the Court of Appeals got this one right. Buying a product specifically because it doesn’t have doors, then suing for the same reason seems illogical. The plaintiff admittedly was fully aware of the risks – always a good sign when trying to formulate an assumption of risk defense.